After Defendant had "rebutted Plaintiff's prima facie case of discrimination the burden shifted to Plaintiff to show that the reasons given by Defendant were merely pretext for discrimination

The Plaintiff commenced this employment discrimination action alleging that the Defendant did not select her for a position at Defendant's institution of higher education because of her sex and religious beliefs. A New York State Supreme Court denied Defendant's motion for summary judgment dismissing the amended complaint and Defendant appealed the court's ruling.

Citing Ferrante v American Lung Assn., 90 NY2d 623, the Appellate Division, noted that:

1. Defendant submitted evidence that a committee consisting of 10 members interviewed Plaintiff and another candidate, and assessed the 2 candidates based on a series of questions; and

2.  The other candidate scored objectively higher than Plaintiff, received more positive comments, and had more relevant experience;

concluded that the Defendant had "rebutted [Plaintiff's] prima facie case of discrimination by establishing that it had 'legitimate, independent, and nondiscriminatory reasons to support its employment decision'".

This said the court, shifted the burden to Plaintiff to raise an issue of fact whether "the legitimate reasons proffered by [Defendant] were merely a pretext for discrimination".

Concluding that Plaintiff failed to raise a triable issue of fact "concerning either the falsity of [Defendant's] proffered basis for [its employment decision] or that discrimination was more likely the real reason", the Appellate Division unanimously reversed the Supreme Court's ruling on the law, without costs, and granted Defendant's motion and dismissed Plaintiffs' amended complaint.

Click HERE to access the Appellate Division's decision posted on the Internet.

New York State municipal and school district audits issued

On February 27, 2025, New York State Comptroller Thomas P. DiNapoli today announced the following local government and school district audits were issued.

Click on the text highlighted in color to access the item posted on the Internet.

 

Roslyn Union Free School District – Information Technology (IT) Equipment Inventory Records (Nassau County)  While district officials generally tracked IT equipment appropriately, they did not always safeguard IT equipment or maintain sufficiently detailed, up-to-date inventory records. The IT inventory list included at least 400 active IT devices that were missing either a serial number or tag number. The fixed asset report did not contain serial numbers for 435 devices, complete descriptions with the manufacturer’s name for 175 devices and model information for 201 devices. Auditors reviewed 60 IT devices to confirm the devices were properly inventoried and physically located at the district and determined that six devices totaling $2,136 and one inkjet printer with an unknown cost were not recorded in the IT inventory list.

Hammond Fire District – Board Oversight (St. Lawrence County)  The board did not adequately monitor financial activities. Specifically, the board did not ensure that it received monthly financial reports to effectively monitor financial operations throughout the year or ensure the Annual Financial Reports were filed timely. The board also did not conduct an annual audit of the secretary-treasurer’s financial records. In addition, one board member has not yet completed the statutorily required financial training and three board members completed the training between 185 and 1,138 days late.

City of Long Beach – Physical Accessibility to Programs and Services (Nassau County)  Of the 500 applicable physical accessibility components reviewed, auditors identified 86 (17%) where city officials could consider taking additional steps to increase physical accessibility at the selected facilities.

City of New Rochelle – Physical Accessibility to Programs and Services (Westchester County)  Of the 895 applicable physical accessibility components reviewed, auditors identified 171 (19%) where city officials could consider taking additional steps to increase physical accessibility at selected city facilities.

City of Batavia – Physical Accessibility to Programs and Services (Genesee County)  Of the 297 applicable physical accessibility components reviewed, auditors identified 21 (7%) where city officials could consider taking additional steps to increase physical accessibility at selected facilities.

###

Recent decisions by New York State courts focusing on Adjective Law issues

Adjective Law is that portion of the law that deals with the rules of procedure governing evidence, pleading, and practice. For example:

1. A New York State CPLR Article 78 proceeding seeking review of an administrative determination may be filed only after the determination has become "final and binding.

An administrative determination becomes final and binding when two requirements are met: 

[1] completeness [finality] of the determination and 

[2] exhaustion of administrative remedies. 

Click Source to access the relevant decision posted on the Internet.

 

2. A settlement agreement is properly read in conjunction with the release, particularly where the release expressly refers to the settlement agreement. 

In the instant New York State litigation the court found that the agreement settled only the claims in a Federal action and made no mention of claims set out in a State action, although the State action was pending at the time. 

Further, the court noted that the claims in the two actions were not related. 

Click Source to access the relevant decision posted on the Internet.

 

3. On a motion to dismiss a complaint pursuant to New York State's CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired. 

If the defendant satisfies this burden, the burden of going forward shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or is otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period.

Click Source to access the relevant decision posted on the Internet.

An Appellate Division's autopsy of an administrative departmental hearing

In this CPLR Article 78 proceeding the Petitioner asked the Appellate Division to annul the determination of a New York State Department of Motor Vehicle Administrative Law Judge [ALJ] revoking his driver's license for 180 days based upon the ALJ's finding that Petitioner violated Vehicle and Traffic Law §1111 by failing to stop at a stop light, resulting in the death of a pedestrian.

The Appellate Division unanimously confirmed the ALJ's rulings, without costs, and dismissed the petition, explaining:

1. Petitioner contended that the ALJ "improperly relied on hearsay [evidence] contained within a police accident reconstructionist's report". Citing  Matter of Sadallah v New York State Dept. of Motor Vehs., 160 AD3d 1482, the Appellate Division found that the ALJ's determination was supported by substantial evidence, observing that "Evidence which would not be admissible in a court, such as hearsay, is admissible in a departmental hearing"* and "if sufficiently relevant and probative may constitute substantial evidence". 

In this instance, said the court, "the testimony of the officer who interviewed eyewitnesses and the [police accident reconstructionist's] report were sufficient to establish that [Petitioner] violated Vehicle and Traffic Law §1111 by entering the intersection while the light was red and striking the pedestrian in the far cross-walk approximately four seconds after the traffic control device turned from yellow to red."

2. Petitioner contended that he was improperly deprived of an opportunity to cross-examine the author of the accident reconstruction report.

In the words of the Appellate Division, "that contention lacks merit; [Petitioner] could have called the author [of the report] as a witness".

3. The Appellate Division rejected Petitioner's argument that it was improper for the ALJ to "draw a negative inference from [Petitioner's] failure to testify".

4. As Petitioner did not argue on administrative appeal that a belated hearing notice deprived the ALJ of jurisdiction to hear the matter, the Appellate Division said Petitioner "failed to exhaust his administrative remedies with respect to that contention".

5. Contrary to Petitioner's argument, the Appellate Division concluded that "a suspension of [Petitioner's] license for 180 days is not so disproportionate to the offense as to be shocking to one's sense of fairness".

The Appellate Division unanimously confirmed the ALJ's decision without costs and dismissed the Article 78 petition challenging it.

* 15 NYCRR 127.6 [b]

Click HERE to access the Appellate Division's decision posted on the Internet.

 

A court may not substitute its judgment for that of an administrative tribunal that is supported by substantial evidence although a contrary decision might have been reasonable

The New York State Division of Human Rights [DHR] adopted the recommended order of the Administrative Law Judge dismissing Petitioner's disability and age discrimination complaints. Petitioner appealed the DHR's decision.

The Appellate Division unanimously confirmed DHR's determination that the Employer had not engaged in unlawful discrimination on the basis of age or disability, finding that the DHR's ruling was supported by substantial evidence. 

The court noted that "[t]he record provides ample evidence to support [the Employer's] proffered reason that Petitioner's termination was due to work performance issues and Petitioner failed to show that the Employer's  legitimate reasons for terminating Plaintiff's employment were a pretext for discrimination.

Citing Matter of White, 160 AD3d at 448, the Appellate Division also noted that a court may not substitute its judgment for DHR's, even if a contrary decision might have been reasonable.

Click HERE to access the Appellate Division's decision posted on the Internet.